Opinion
No. 29859.
May 16, 1932. Suggestion of Error overruled June 13, 1932.
1. CONSTITUTIONAL LAW.
Legislature may validate municipality's unauthorized act which Legislature could constitutionally authorize originally.
2. MUNICIPAL CORPORATIONS.
Legislature may authorize construction of sidewalks by municipality without giving abutting owners opportunity to protest or construct improvements themselves (Laws 1912, chapter 260).
3. MUNICIPAL CORPORATIONS. Defects in ordinances for construction of sidewalks, curbs, and gutters, failing to give property owners opportunity to protest against construction or to construct improvements themselves, held cured by validating act, and such act was constitutional ( Laws 1912, chapter 260; Laws 1930, chapter 59).
Alleged defects in ordinances, in failing, under Laws 1912, chapter, 260, to set forth character of special improvements contemplated, failing to refer to plans and specifications adopted therefor, and failing to provide for publication in order that owners of property affected thereby might protest against making of special improvements or construct improvements themselves, were cured by Laws 1930, chapter 59, sections 1, 2, validating such ordinances regardless of defects or omissions or informalities, or failure to comply with any law; and validating act was constitutional, since Constitution nowhere required property owners to be given opportunity to protest or to construct improvements themselves.
APPEAL from chancery court of Pike county. HON. T. PRICE DALE, Special Chancellor.
J.W. Cassedy, Jr., of Brookhaven, for appellants.
Chapter 59 of the Laws of 1930 is unconstitutional if it is construed to be an authority curing or validating this sidewalk proceeding and assessment which is void because of jurisdictional defects.
Jurisdictional matters are frequently held not to be within the scope of curative statutes; the legislature cannot cure or validate jurisdictional defects.
Statute providing that after a special assessment shall be set aside or be invalidated in whole or in part the council may cause a new assessment to be made in the manner provided in the original assessment, which shall have the same force and effect as the original assessment, confers no right to make the reassessment where the original proceedings are void for want of jurisdiction.
44 C.J. 773, Sec. 3347.
A curative statute is necessarily retrospective in character and may be enacted to cure or validate errors on irregularities in legal or administrative proceedings, except such as are jurisdictional or affect substantive rights.
6 R.C.L., page 320, Sec. 309.
A statute validating an assessment after it has been adjudged invalid by a court of last resort is invalid as an assumption of jurisdictional power by the legislature.
McManus v. Hornaday, 124 Iowa, 267, 100 N.W. 33, 104 Am. S.R. 316, 2 Ann. Cas. 237 Baltimore v. Horn, 26 Md. 194; Thomas v. Portland, 40 Or. 50, 66 P. 439.
The legislature cannot legalize a special improvement assessment which is void for failure to comply with jurisdictional requirements made necessary by the State and Federal Constitutions.
Cooper v. Bozeman, 54 Mont. 277, 169 P. 801; Shappard v. Missoula, 49 Mont. 269, 141 P. 544; Haggart v. Alton, 29 S.D. 509, 137 N.W. 372; McSurely v. McGraw, 140 Ia. 163, 172 N.W. 415; Walpole v. Elliott, 18 Ind. 258, 81 Am. Dec. 368; Brownwell v. Greenwich, 114 N.Y. 518, 22 N.E. 24, 4 L.R.A. 685; Swartz v. Carlisle Borough, 237 Pa. St. 473, 85 A. 847, Ann. Cas. 1914B. 458; Enid v. Gensman, 76 Okla. 90, 181 P. 308; Hall v. Wilton Company, 66 Cal.App. 615, 227 P. 649; Kelly v. Lunning, 76 Cal. 309, 18 P. 335; Rollins v. Wright, 93 Cal. 395, 29 P. 58; Haaren v. High, 97 Cal. 445, 32 P. 518; Ramish v. Hartwell, 126 Cal. 443, 58 P. 920; Ap v. Stockton, 61 N.J.L. 520, 39 A. 921; Merrian v. Passaic, 38 N.J.L. 171; Peo v. Brooklyn, 71 N.Y. 495; Kelly v. Cleveland, 34 Oh. St. 468; Sullivan v. Pausch, 5 Oh. Cir. Court 196, 30 Oh. Cir. Dec. 98; Seattle Cedar Lumber Co. v. Ballard, 50 Wn. 123, 96 P. 956; Thompson v. Lee County, 3 Wall, 327, 18 U.S. (Fed.) 177; Thompson v. Perrin, 103 U.S. 806, 26 U.S. 612; McCord v. Sullivan, 85 Minn. 344, 88 N.W. 989, 89 A.S.R. 561.
The rule in respect to statutes curing defects in legal proceedings, amounting to mere irregularities not extending to matters of jurisdiction, and in the absence of constitutional limitations, is that if the thing wanting, or which failed to be done and which constitutes the defect in the proceeding, is something the necessity for which the legislature might have dispensed with by prior statute, the legislature has power to dispense with it by subsequent statute, and if the irregularity consists in doing some act, or in the method of doing it, which the legislature might have made immaterial by prior law, it may be made immaterial by a subsequent law. But the legislature has no power by a remedial statute, to legalize defective proceedings under a former statute, where it has no present authority to authorize like proceedings; nor has it power, by a subsequent curative statute, to remedy a jurisdictional defects, or one which goes to the substance of a vested right.
6 R.C.L., page 321, section 310.
Chapter 59 of the Laws of 1930 is unconstitutional and is contrary to section 14 of Article 3 of the Constitution of the State of Mississippi and is unconstitutional because it is contrary to Article 5 of the Amendments to the constitution of the United States.
If this law is unconstitutional it merely applies to informalities and irregularities which are not jurisdictional defects and, therefore, said law is not sufficient authority to give the appellee, City of McComb, the power to cure and validate the void proceeding.
The Legislature does not have the power to validate the original sidewalk proceeding for the reason that the Legislature had no power under the Constitution to authorize the construction of sidewalks and the levying of assessments for the payment of same without granting to the property owners an opportunity to protest or object, and to be heard, and to appeal to the courts.
Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896; Donovan v. Mayor and Council of Vicksburg, 29 Miss. 247, 64 Am. Dec. 143; Londoner v. City of Denver, 210 U.S. 385, 28 S.C. 714, 52 L.Ed. 1103; Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.C. 625, 59 L.Ed. 1027; and Spencer v. Merchant, 125 U.S. 345, 8 Sup. Ct. 921, 31 Law Ed. 763; Cox v. Wallace, 56 So. 461; Wilkinson v. Lee, 51 So. 718.
The only defensible rule is that which requires that at some stage of the proceedings, before the judgment or decision becomes conclusive, the landowners should have notice, or the opportunity to be heard.
Nugent v. Jackson, 72 Miss. 1040, 18 So. 493; Stuart v. Palmer, 74 N.Y. 183.
It is very generally held that property owners are entitled to notice of an assessment and a hearing thereon, and that an improvement statute which makes no provision for notice and hearing is unconstitutional.
28 Cyc. 1145.
The concensus of opinion is that it is necessary to the validity of a special assessment that somewhere along the line of the proceedings, notice be given to the owner and an opportunity afforded him to be heard in opposition or defense, and that statutes which make no provision for notice are unconstitutional.
Hamilton on Law of Special Assessment, 145, 100, 101; Stuart v. Palmer, supra; Garvin v. Daussman, 114 Ind. 429, 16 N.E. 826, 5 Am. St. Rep. 637; Violett v. Alexandria, 92 Va. 561, 23 S.E. 909, 31 L.R.A. 382, 53 Am. St. Rep. 825; Gray on Limitation of Taxing Power, par. 1165.
Ulman v. Baltimore, 72 Md. 609, 21 A. 711, 11 L.R.A. 224; 12 C.J., sec. 1061, page 1260.
Price, Cassidy McLain, of McComb, for appellee.
The general rule has been often declared that the legislature may validate retrospectively the proceedings which they might have authorized in advance; therefore, if any of the directions of the statute fail of observance which are not so far of the essence of the thing to be done that they must be provided for in any statute on the subject, the Legislature may retrospectively cure the defect.
Cooley on Taxation, page 227.
This court has upheld the constitutionality of a statute which had the effect of curing retrospectively an invalid assessment on which a tax sale was based.
Marhle v. Phyfe, 69 Miss. 596, 13 So. 842.
The Legislature had the authority by general law by the passage of a statute curative in its nature, and not creative, to validate the proceedings, as well as the bonds resulting from the proceedings.
Reed v. Norman Breaux Lumber Company, 107 So. 545, 142 Miss. 756.
A reassessment of property for the benefit of a public improvement may be made where the original assessment has been insufficient or illegal, or where property subject to the assessment has been omitted. Furthermore, reassessments may be made without violation of the guaranty of due process for the maintenance and repair of public improvements. If the owner has, by reason of notice or otherwise, been properly made a party to the proceedings, no additional notice of the reassessment need be given him.
12 C.J. 1265, par. 1067.
An inheritance tax law, void for lack of provision for notice, may be corrected in this regard, and is then applicable to property not yet distributed, although the testator died before the law was amended.
50 L.R.A., p. 92.
There is no doubt of the right of the Legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws not forbidden, eo nomine, by the state constitution, and provided further that no objection exists to them other than their retrospective character.
Cooley on Taxation, page 77.
A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds unless expressly forbidden.
Cooley on Taxation, page 773; Thompson v. Perrine, 26 L.Ed. 612.
The court has upheld the constitutionality of a similar statute.
Bryan v. Greenwood, 112 Miss. 718, 73 So. 728.
By the weight of authority it is regarded as within the power of the legislature to validate, or provide for validating, an assessment which is void because of nonjurisdictional defects or irregularities in the proceeding, where the omissions or irregularity is as to something the legislature, by a prior statute, might have dispensed with or authorized to be done in the way in which it was done. Even a want of power or authority on the part of the municipality or its officers may be cured by statute where the legislature, by a prior statute, could have conferred the requisite authority.
44 C.J., page 793, par. 3388.
By the provisions of many statutes, a reassessment may be made, although the original assessment was void because steps necessary to give the council jurisdiction of the subject matter were not taken. It has been so held where an improvement was made without the petition of the property owners for the improvement required by statute — or where the notice required by statute was not given. The notice required by statute, while in the nature of process, is not subject to the same strict rules as ordinary process.
44 C.J., page 773, par. 3347.
The appellants exhibited an original bill against the appellee, praying that it be enjoined from assessing property owned by the appellants abutting on certain of the appellee's streets, for the payment of the expense incurred by the appellee in constructing sidewalks, curbs, and gutters along the streets. A demurrer to the bill was sustained.
The bill alleges, in substance, that in 1924 the appellee adopted ordinances under chapter 260 of the Laws of 1912 for the construction of the sidewalks, curbs, and gutters, but failed in so doing to comply with certain requirements of the statute. The particular provisions of the statute alleged to have not been complied with were those requiring the ordinances to set forth the character of the special improvements contemplated, to refer to plans and specifications adopted therefor, and that publication thereof be made in order that the owners of the property affected thereby may protest against the making of the special improvement, and, if they so desire, to construct the same themselves.
Chapter 59, sections 1, 2, Laws 1930, provides: "That any municipality in this state, operating under special charter and having the power under its charter and/or its amendments and/or the laws of this state to construct or cause to be made sidewalks, curbs, or gutters, which has levied or assessed or charged the cost thereof against the property abutting thereon and to the owners thereof, and has paid such cost and has not been paid therefor in full, and, in the judgment of the board of mayor and selectmen or other governing authority of said municipality, errors or irregularities have occurred in the assessing and/or computing of such cost, such municipality is hereby authorized and empowered to ascertain the cost thereof and to add thereto accrued and unpaid interest, and to fix and declare the same by resolution, and to correct errors or irregularities in said former assessment or assessments accordingly, but in no event shall the principal amount thereof, exclusive of interest, be increased. When such errors or irregularities have been corrected, the assessment or assessments so made, and all steps and proceedings leading up thereto or precedent thereto are hereby confirmed and validated for all purposes and against all persons, and said assessment or assessments shall be in lieu of the assessment or assessments in which said errors or irregularities have been made or occurred; and such further proceedings may be had thereon to provide for and fix a lien on said property to secure the payment of said assessment or assessments, and for enforcing the collection thereof, and otherwise, in the same manner as is now provided by Chapter 194 of Laws of Mississippi 1924, and other laws, when valid assessments have been made that are not erroneous or irregular. . . . That all orders, resolutions, ordinances, and proceedings relative to sidewalk, curb, or gutter improvements heretofore passed and adopted by any such municipality or its governing authority, be and the same are hereby in all things made valid and binding, regardless of defects or omissions or informalities or the failure to comply with any law or part of law relative thereto."
Under this statute the appellee was proceeding to assess the property abutting on the streets along which the sidewalks, curbs, and gutters were constructed, under the ordinances hereinbefore referred to, for the expense incurred by it in constructing the sidewalks, curbs, and gutters.
It is admitted by the appellee, and this court so held in City of McComb v. Barron, 147 Miss. 465, 112 So. 875, that the appellee was without power under chapter 260, Laws 1912, to assess the cost of the sidewalks, curbs, and gutters to the property abutting thereon, and the appellee relies solely on chapter 59, Laws of 1930, the constitutional validity of which is challenged by the appellants. The Legislature has full power to validate an unauthorized act of a municipality which it had the power, under the Constitution, to authorize in advance. What the appellee here did was to construct the sidewalks, curbs, and gutters, the cost of which it now seeks to apportion to the property abutting thereon without giving the owners of the property an opportunity to protest against the constructing of the sidewalks, curbs, and gutters, or of constructing them themselves. The Constitution nowhere requires property owners to be given either of these rights, so that the Legislature had full power to authorize the construction of the sidewalks, curbs, and gutters without reference thereto. Bryan v. City of Greenwood, 112 Miss. 718, 73 So. 728. The defects in the ordinances under which the sidewalks, curbs, and gutters were constructed has therefore been cured.
Affirmed.